advice from a fake consultant

Wednesday, April 21, 2010

On Making Mining Safer, Part Two, Or, "Can We Appeal Safety To Death?"

It was about a week ago that we last got together to talk about safety in coal mines, and we have some new developments in the story that deserve a bit more of your attention.

As we discussed last time, there are a huge number of hazards inherent in the operations of underground coal mines, and there are a series of “mitigators” that can be applied to reduce those hazards.

Ironically, the biggest hazard these miners face today might not be underground at all.

In today’s story we’ll consider the possibility that the most dangerous location in the mining industry might actually be at the Federal Mine Safety and Health Review Commission, where an enormous backlog in enforcement actions is keeping dangerous mines open that might otherwise be closed.

It’s a “bad news, good news” story—but it really does have a potential happy ending, and with a bit of pressure, we can actually make life a whole lot better for miners, and their families, all across the country.

“A Texas rancher shot a man dead and telegraphed a slick lawyer in Fort Worth, three hundred miles away, offering a $5000 fee. The attorney wired back, “Leaving for your town on next train, bringing three eye-witnesses.””

In the previous story we had a long conversation about how coal is mined and how fines and closures can help to, shall we say, “provide the proper motivation” for mine operators.

Congress seems to agree, and after a series of incidents in 2006 that killed a number of miners new legislation was put into place that allows the Mine Safety and Health Administration (MSHA) to close a mine, temporarily, if it should be warranted.

However, this can only occur if MSHA can establish that the mining operation has a history of ongoing violations that officially qualify as a Pattern of Violations (POV), which basically comes down to this:

“...(1) a history of repeated significant and substantial violations of a particular standard; (2) a history of repeated significant and substantial violations of standards related to the same hazard; or (3) a history of repeated significant and substantial violations caused by unwarrantable failure to comply...”

Once that pattern has been legally established, any additional findings of “serious and substantial” violations (S&S is the fancy insider term) in that mine by MSHA inspectors become closure orders, meaning that the miners have to either “withdraw” from the area that’s in violation, or that the entire mine may be closed down until things are fixed.

Mines that have new S&S violations while in this POV status also get bigger fines for each violation than if they weren’t in that position.

Would you be amazed if I told you there’s a loophole available to mine owners that can keep them out of this status?

I didn’t think so...and there is: violations don’t count unless and until they are fully adjudicated, which means administrative law judges have to rule on the merits of each and every violation that a mine operator might choose to appeal (a service provided by the independent Federal Mine Safety and Health Review Commission, hereinafter referred to as “the Commission”)...and by an amazing coincidence, the number of appeals of violations since the 2006 legislation went into effect is suddenly way up.

There has also been a lot more actual enforcement over at MSHA these days than in days past, and the number of enforcement actions brought by the agency has climbed from about 1500 cases a year in the Bush Administration’s first term to about 14,000 cases in Fiscal Year 2009; the total amount of fines assessed grew from $25 million to almost $200 million over the same time period.

The Commission’s administrative law judges also have to rule on the settlements that result from cases being worked out by negotiation between MSHA and mine operators; this is to try and ensure that MSHA doesn’t get too cozy with mine operators when making deals, a problem that has been attributed to the agency over the years.

The combination of these three factors has created, as of this writing, a backlog of about 16,000 unresolved cases that are moving around between MSHA and the Commission...and mine operators seem to have figured out that appeals are the smart way to game the process, as the outcome of any enforcement or POV designation is delayed by at least a year, and any potential penalty is likely to be reduced during the appeals process, often by as much as one-half.

Mine operators, by the way, disagree with this analysis: they would tell you that before the 2006 legislation the informal conferences they used to be able to have with MSHA inspectors helped to keep many potential violation cases out of the adjudication process entirely, keeping the caseloads, and backlogs, low.

Those on the other side would basically respond that the conferences were indeed an effective tool for mine operators to make enforcement orders go away, quickly and quietly; unfortunately, it wasn’t doing much to improve miners’ safety.

There are some numbers that we can look at that tell us a few things:

There is a group of 32 coal mines that would probably be in POV status today if it wasn’t for the fact that they have lots of violations that are still in the appeals process. Operators like Patriot Coal Company and Massey Energy have mines that are appealing more than 50% of the violations MSHA hands out, and a couple of operators have coal mines that contest up to 72% of violations.

It’s not just coal, either: there are 6 other mines that would likely be in POV status if they weren’t appealing more than 75% of their violations, including various cement and gold producers and Williams & Sons Slate & Tile, Inc., of Wind Gap, Pa., who have been appealing 100% of their violations.

Is all this appealing taking place because MSHA is writing huge numbers of frivolous violations?

“...if you look at the data, what it tells you is less than one-half of one percent of the violations issued by MSHA inspectors, uh, are vacated or thrown out. That means almost every violation that they issue is a violation...”

The upshot of all of this is that the 2006 legislation’s POV enforcement provisions have essentially been rendered useless; the effort now is to make a bad situation better.

How is that going to happen?

First, MSHA is considering plans to institute several technical changes in the flow of paperwork, most of which would result in filings either being presented sooner in the process or being prepared by the involved parties instead of the Commission’s administrative law judges.

Other proposed changes would combine multiple portions of the current system into more of a “one-stop” approach and combine multiple violations from one operator into one combined case.

Portions of the Federal Rules of Civil Procedure could also be adopted to replace some of what is today a more “proprietary” method of moving a case along.

A more controversial aspect of the new case management approach MHSA is considering would include a sort of “pretrial conference” that would conduct the fact-finding portion of the process before the case moves over to the Commission, leaving the judges only to apply the law to those facts and to decide the severity of any sanctions that the facts of the case warrant.

Another way to reduce the caseload facing each judge would be to increase the number of administrative law judges. The Commission’s current number of 10 is already scheduled to grow to 18 by the end of 2011. We’re told that because of the growth in the number of new filings this will not reduce the time to resolve cases; instead, this will essentially be an exercise in “treading water”.

MSHA and Commission senior managers have laid out two scenarios that would increase the number of judges to 28. The less aggressive scenario, when combined with the other changes, could reduce the backlog by 2014, the more aggressive, by January of 2013.

Where, you might ask, are these new judges to be found?

As it turns out, the Social Security Administration is a sort of “farm team” for the other Federal agencies that require such services, and the Commission expects they’ll be able to “poach” a few from over there if the budget authority is granted to do so.

I sent an email to a House staffer I know, looking to get a sense of how all this might play out; the on-the-record response being:

"We are looking at how to aggressively work down the backlog."

And with all that said, let’s wrap this thing up:

Because of the new rules for handling violations, mine operators have benefitted, wittingly or unwittingly, from the new giant backlog of cases.

Certain mine operators are either aggressively protecting their interests in every way the law allows or interminably stalling just to save themselves from big fines and the annoying process of not killing their workers, depending on whom you ask; the outcome of that effort has been to make the POV regulations that were designed to compel better behavior unenforceable.

There are proposals that would reduce this backlog, and it appears that in Congress there is support for such an effort.

If you want to have an impact on this process, this would be a good time to let either Patty Murray (D-Recent Death Threat), who chairs the Senate’s Employment and Workplace Safety Subcommittee, or George Miller (One Of My Favorite Democrats-California), who is Chair of the Committee on Education and Labor in the House, know how you feel. I’m told that there are Republicans, at least on the House side, who are also willing to help move this along, and Minnesota’s John Kline (the Education and Labor Committee’s Ranking Member) would be an excellent person to reach out to as well.

Since 1900 104,674 workers have died in the coal mines (we were still killing over a thousand a year well into the 1940s), and we’re finally to the point where fewer than 50 a year are dying...but that’s not good enough.

We still have a group of mine operators who see non-compliance with safety regulations, and the deaths that go with it, as a reasonable cost of doing business; we need to offer some friendly support to Congress, right now, to keep the reforms moving if we want to make that behavior stop.

We have a good situation here: The House appears to have bi-partisan support for such a move, and if there are Senators who want to stand up and threaten a filibuster, because they support a mine operator’s right to kill miners...well, that’s a pretty good place not to be if you’re in the getting elected business.

There are people running for both the House and the Senate who would like to advance this effort, and if you personally come across a candidate this political season...ask ‘em about all this, and see what kind of response you get.

Now I don’t know about you, but when I sit down to type these stories I’m not worried about the roof caving in, or the computer exploding, and there’s nobody around here trying to figure out whether it’s cheaper to let me die or do to some repairs so that I might survive another day on the job.

There is no reason why that should not be true for miners as well, and it’s about time we did what we have to do to make sure that what starts out as “just another day at the office” for nearly 135,000 Americans doesn’t end with you, and everybody you used to work with, going home in body bags.